February 15, 2016

Digital Piracy

Digital piracy is a battle ground that has been fought over by the creative industries for years – and although its economic impact on such industries is almost impossible to quantify, the magnitude of the problem is well documented and largely accepted.

Various legal remedies have been attempted to stop the mass infringement of copyright that illegal BitTorrent and streaming sites create, but there are fundamental issues: taking action against the sheer volume of individuals using these sites is impossible, and the operators of the sites are extremely hard to find and if they can be found, and an injunction is granted against them, historically, they have moved the location of the site.

The most effective remedy has been to tackle the issue with intermediaries – that is to say not those directly liable, but those who can do something to stop it. In an online world, intermediaries are crucial. They include internet service providers (i.e. the company that provides your internet: Virgin Media, Sky, EE, BT, Talk Talk); search engines (the largest being Google) and advertisers who market their products on the websites, ensuring they are profitable.

Initiatives are under way in relation to each of the above (and more) – including both litigation routes and voluntary approaches, but site blocking proves to have had the most impact and its scope has snowballed from its initial use.

Site blocking: the legal background

Site blocking means targeting internet service providers (“ISPs”) and obtaining an order for them to block the users of their internet services from accessing certain websites notified to them. Once an order has been obtained and a site has been blocked, a site will show a message such as:

  
Article 8(3) of the Information Society Directive 2001/29/EC states that: “Member States shall ensure that rightsholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.”

This was transposed into UK national law as section 97A Copyright, Designs and Patents Act 1988 in 2003, as follows: “The High Court (in Scotland, the Court of Session) shall have power to grant an injunction against a service provider, where that service provider has actual knowledge of another person using their service to infringe copyright.”

In practice, there are four key requirements to prove:

1. The ISPs are service providers: this is now generally accepted;
2. Copyright has been infringed:
   a. by the operator of the site: through communication to the public (s20 CDPA 1988); authorisation (s16(2) CDPA 1988) and joint tortfeasorship (with the user of a BitTorrent site for uploading and downloading content; and with the host website in relation to a streaming site which links to third party sites);
   and, if the site is a BitTorrent site,
   b. by the users of the site: through communicating to the public when uploading a file; and making a copy of copyrighted content when downloading a file;
3.  The ISPs’ services are used to infringe copyright: the major UK ISPs now make up approximately 92% of the UK’s residential broadband market. As a result of this it is accepted that their services are used by infringers;
4.  The ISPs have actual knowledge of such infringement: achieved through notices sent to the ISP informing them of such infringement,

in addition to the injunction being a proportionate, effective and dissuasive remedy against infringement.

Success

Section 97A was first used in Newzbin2 in 2011. An injunction had been granted against the Newzbin website, but soon after, Newzbin2 appeared. As a result, the Motion Picture Association (instructing Wiggin) brought a successful claim under section 97A against BT (the UK’s largest ISP). Since then, its use has snowballed and injunctions have been granted in favour of not only the Motion Picture Association studios but also the British Phonographic Industry, The Publishers Association and the Premier League. Site blocking orders against ISPs are now effective in 19 countries, blocking over 480 copyright infringing sites (BPI, Digital Music Report 2015).

Section 97A’s scope has expanded from BitTorrent websites to include streaming sites and ‘popcorn time’ sites; and the broadening scope of the orders ensures that the injunctions are becoming increasingly effective.

Although it is not a complete solution to online IP infringement, section 97A’s success demonstrates both the courts’ jurisdiction to address the issue and the important role that online intermediaries have to play. It is hoped that users will turn to legal alternatives when infringement becomes less convenient.

For more information on site blocking, please contact our Intellectual Property/Rights Protection group.